Civil procedure in New South Wales

1105 Pages·2019·16.639 MB·English

by  Michael Legg, Miiko Kumar, Ilija Vickovich, (Lawyer) James Metzger

CIVIL PROCEDURE IN
NEW SOUTH WALES
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CIVIL PROCEDURE IN
NEW SOUTH WALES
FOURTH EDITION
MIIKO KUMAR
Crown Prosecutor, Barrister at Law
PROFESSOR MICHAEL LEGG
Faculty of Law University of New South Wales
ILIJA VICKOVICH
Macquarie Law School Macquarie University
DR JAMES METZGER
Faculty of Law University of New South Wales
LAWBOOK CO. 2020
Published in Sydney by
Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668
19 Harris Street, Pyrmont, NSW 2009
ISBN: 9780455243467
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DEDICATION
Miiko Kumar dedicates her
chapters to Marco, Lenny and
Heidi
Michael Legg dedicates this book
to Laetitia, Maxime and
Alexandre
Ilija Vickovich dedicates his work
on this edition to the health of his
sons Aleks, Daniel and Damien
James Metzger dedicates his chapters
to Carol Metzger
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FOREWORD
The Hon John Basten
Judge, NSW Supreme Court, Court of Appeal
It may be that law students, and even neophyte lawyers, do not instinctively identify civil procedure
as an intrinsically interesting, intellectually demanding or even an important topic. They would be
wrong on each count. To know substantive law provides only half the picture. Some examples readily
demonstrate why this is so.
Take the plaintiff sleeping in the cabin of his prime mover while his co-driver undertakes a night time
stretch of a rural highway. A black bull wanders in front of the vehicle. The fully laden road train hits
the bull and overturns. The plaintiff is seriously injured. Who was at fault, and how should the plaintiff
find out? Is there an applicable limitation period? If so, when will it expire? Resolutions of these
procedural questions can be as complex and demanding as the tests of negligence and occupier’s
liability which will underpin any claim.
Other recent issues have concerned the power of the NSW Civil and Administrative Tribunal (NCAT)
to deal with landlord and tenant disputes where the landlord of NSW premises resides interstate; the
right of an unsuccessful party in bankruptcy proceedings in the Supreme Court to appeal to the New
South Wales Court of Appeal; and whether a court hearing a class action could order that a portion of
a putative award of damages be payable to the plaintiff’s litigation funder and lawyers, thus allowing
security for their fees in the event the claim is successful. Can the same be done for creditors in a
corporate liquidation?
Sometimes courts exercise “inherent” powers which are not expressly conferred by statute or rules
made under a statute; do tribunals enjoy similar inherent powers as a result of their establishment and
constitution? In many disputes, one party will benefit from speedy resolution, while the other would
prefer delay and procrastination. Sometimes the parties, or one of them, thinks that they can resolve
the dispute if the court will answer separately and in advance of a full trial, one specific question. The
party asks the judge to state a question for separate determination. When should that procedure be
adopted? Will it really shortcut a potentially costly trial, or will it undermine the orderly resolution of
the whole dispute? Usually the process will work only if the question is answered one way. Even if that
occurs, will the losing party seek to appeal? Large forensic battles can be fought over such procedural
steps.
Are our procedures well attuned to delivery of just, quick and cheap justice? This book provides
materials to allow any thoughtful reader to explore such questions and assess the justifications for the
answers.
Like most subjects in a modern law school curriculum, a proper understanding of procedure requires
skills in statutory interpretation. All law students now receive, or should receive, specialised training
in this intellectual discipline. In the past, courses on statutory interpretation, rather like courses on
civil procedure, have been undervalued, or taught interstitially in substantive courses. Civil procedure
requires skill in construing such materials in a special context. To understand a document, it is necessary
to see the actual text, not just read what a judge has said about it. This book sets out the important
statutory provisions and the relevant rules. It also provides key forms, which will help readers who do
not have ready access to such materials.
Finally, as the world grows in complexity, so do dispute settlement procedures. The efforts of the
authors in keeping this valuable text up to date are much to be commended. This fourth edition is
most welcome.
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PREFACE
Civil Procedure in New South Wales provides a scholarly yet accessible account of the New South Wales
civil justice system. The text addresses the key procedures prior to the commencement of proceedings
and throughout the life cycle of litigation by way of both a principled and practical approach – from
the initiation of proceedings through key steps such as pleadings, service, discovery and evidence to
enforcement. Explanations and commentary are provided with reference to relevant provisions of the
Civil Procedure Act 2005 (NSW), the Uniform Civil Procedure Rules 2005 (NSW), the Evidence Act 1995
(NSW), the Legal Profession Uniform Law and extracts of illustrative cases. The text also deals with
fundamental principles of our civil justice system such as open justice, fair trial, case management and
lawyers’ ethical requirements.
Miiko Kumar, Michael Legg and Ilija Vickovich have convened and taught the compulsory civil
procedure courses at the University of Sydney, University of New South Wales (UNSW) and Macquarie
University respectively over a number of years. They also have numerous years of experience as
practitioners in New South Wales. For the fourth edition, they are joined by Dr James Metzger from
UNSW who has convened and taught civil procedure at UNSW and the University of Sydney. This text
draws on the authors’ combined experience.
The text is aimed at the novice and those recently initiated but seeks to take students and practitioners
alike into some of the more advanced or practical areas such as interim preservations orders, service
overseas, class actions, commercial arbitration, electronic discovery, the preparation of witnesses and
expert evidence. It is hoped that the text will not only perform its primary teaching role but also assist
students as they make the transition to litigation and dispute resolution practitioners.
The authors would also like to thank past students, lecturers and other users of previous editions of the
text whose questions and suggestions have assisted in revising the content of the text. The authors
would like to express their appreciation to the Hon John Basten for writing the Foreword. Thanks
are also due to the Thomson Reuters staff who have shepherded this book to completion, including
Elizabeth Gandy, and Nicholas Riley.
Miiko Kumar, Michael Legg, Ilija Vickovich and James Metzger
Sydney, December 2019
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